How The ‘Wall’ That Helped Build The Internet Is Showing Some Cracks

[By Thom Fladung, Hennes Communications]

The internet has democratized communications, allowing for a free flow of information unlike anything we’d ever imagined. The power once exclusive to big publishers and media moguls now is held by individuals, who can reach thousands of readers in an instant.

And you can thank Section 230 of the Communications Decency Act for that.

The internet is a communications nightmare come to life – a place where meanness prevails, trolls rule and facts have become meaningless in the face of charlatans who peddle fake news.

And you can blame Section 230 of the Communications Decency Act for that.

CDA Section 230, passed by Congress in 1996, has been called the law that allowed the growth of what we now call social media. The Atlantic described it as the law that protects Facebook and Mark Zuckerberg from being hauled into court if a Facebook user posts something libelous there. It’s the law that has allowed for the comment boards on stories on news websites that you either love or hate.

And it’s the law that has made social media the place where an individual’s or organization’s reputation can be built up or destroyed in a matter of a few tweets and Facebook shares.

Now, though, authors Leanne Ta and Aaron Rubin write on the Socially Aware Blog that CDA 230 has come under attack as never before in the past 18 months – and the attackers are finding chinks in the armor.

That has potentially serious implications – for internet publishers, for anyone who posts on the internet and for people who find themselves under attack on social media and want to fight back.

“Lawyers looked at Section 230 and said, we’re not getting through that wall,” said Matt Cavanagh, an attorney at McDonald Hopkins in Cleveland who specializes in media and First Amendment issues. “The wall is still there. It’s strong as ever. But people have found ways to jump over it. And to dig under it.”

In most cases, Cavanagh said, the goal is to simply get the offending post removed. Increasingly, he said, that’s happening as the aggrieved are more aggressive at going after the authors and more publishers or site hosts are willing to remove the offending material.

The Socially Aware authors cite several cases that illustrate the courts starting to narrow the protections from Section 230. That includes cases that highlight Section 230’s slippery slope: If you edit or change or use the third-party material to report and write further on a subject, are you now an author, losing 230 immunity?

“Courts have historically been fairly strict about applying this exception, and have consistently held that editing, selecting and commenting on third-party content does not take a defendant out of Section 230 immunity,” the Socially Aware authors write. “However, recent cases seem to blur the line between what it means to ‘develop’ content and to exercise editorial functions.’’

In one case, the operator of a residential youth treatment facility filed a defamation suit against the operator of a website that had critical descriptions of the facility. The defendant called in Section 230, “arguing that she had merely selected and summarized third-party material to make it more digestible for readers.”

The court wasn’t buying it, saying the defendant hadn’t used quotation marks with the alleged third-party material and that the website operator had asked for the third-party comments through surveys she had conducted. Those factors, the court said, made the website operator the author of the allegedly defamatory statements.

And one of the great unknowns is how the current atmosphere, with concerns about fake news and a growing general sense that harm is too often being done via internet communications, will affect court rulings.

“For the internet to be viable, you have to allow free speech,” Cavanagh said. “I think everybody gets it. It’s a good law.”

That said, bad things can happen to good laws.

Cavanagh cited largely overlooked language that businesses began inserting in terms and conditions of online sales in recent years. That language said the buyer agreed to not publish derogatory comments about the seller, with monetary damages coming into play for violations of the contract.

“People were posting (critical reviews) on Yelp,” Cavanagh said. “And the businesses were going after them.”

So, this fall Congress passed the so-called “Yelp Bill” – a law that prohibits such “gag clauses” in terms of service. Thus restoring your right to tell everyone how much you hated that burrito and how dirty the hotel carpeting was.

Thom Fladung worked at newspapers for 33 years before joining Hennes Communications in July of 2015.